Academic journal article Stanford Law & Policy Review


Academic journal article Stanford Law & Policy Review


Article excerpt

INTRODUCTION                                             246 I. THE ANTITRUST CHALLENGE TO THE STUDENT-ATHLETE MODEL  249  A. Antitrust and the NCAA                               251   1. The Sherman Act                                     251   2. The NCAA                                            252  B. O'Bannon v. NCAA  254  C. Jenkins v. NCAA                                      258 II. THE IMPLICIT QUESTION--ARE ATHLETES EMPLOYEES?       259  A. The NCAA's Amateurism Narrative  260  B. The Employee-Athlete Narrative                       262  C. How the Narratives Drive the Antitrust Application   264   1. The Influence of Narrative on Doctrine              264    a. Defining the Applicable Market                     264    b. Anti-competitive restraints                        265    c. Pro-competitive justifications                     265   2. The Influence of Narrative on Equity                266 III. THE ANTITRUST ANALYSIS THROUGH THE EMPLOYEE LENS    267  A. Who Funds Whom?                                      267  B. Time Allocation                                      268  C. Character of Remuneration                            269  D. Revenue Generated                                    270 IV. A ROAD MAP FOR SAVING THE STATUS QUO                 271 CONCLUSION                                               272 


"The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer. ..."

--NLRA section 152(3) (1)

The National Collegiate Athletic Association (NCAA) recently survived the latest "bet-the-company" challenge to its amateurism model in the Ninth Circuit's decision in O'Bannon v. NCAA. (2) Indeed, this antitrust challenge threatened the NCAA's very existence with its claim that the NCAA operates as a cartel that restrains the ability of student-athletes to participate in an open market to receive compensation for their services as athletes. (3)

The first part of the court's holding--that the Sherman Act applies to the NCAA and that the current student-athlete model is anti-competitive--sets the stage for future challenges to the student-athlete model. (4) A current class action in federal district court--Jenkins v. NCAA--aims to exploit this opening created in O'Bannon (5.)

But the Jenkins plaintiffs must overcome the second part of the Ninth Circuit's holding in O'Bannon: providing student-athletes the cost of attendance served as an adequate remedy for the antitrust violation, particularly in light of the pro-competitive benefits the court found that the current system of amateurism provides. Specifically, the court determined that the product of college football and basketball games could suffer without restraint on athletes from receiving compensation. (6)

To be sure, Jenkins is not merely O'Bannon re-litigated. The O'Bannon case began as a challenge to the use of former student-athletes' names, images, and likenesses (NILs) in EA Sports video games manufactured in partnership with the NCAA. (7) The Jenkins plaintiffs have the opportunity to develop a much more direct factual basis for their antitrust claim. (8) particularly, the plaintiffs can provide evidence undermining the NCAA's claim that the success of the economic product of NCAA football and basketball depends in significant ways upon maintaining the amateur status of student-athletes. (9) The Jenkins plaintiffs are also requesting injunctive relief, not money damages. Specifically, they seek to prevent the NCAA from enforcing its amateurism rules. (10)

This Article, however, argues that the court's decision in Jenkins will not simply turn on the application of antitrust principles but instead hinge on a deeper assumption concerning the character of the athletes themselves. Specifically, the outcome in Jenkins rests in large part upon whether the court views the athletes as employees of the university or students. …

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